White v. Crandall
| Decision Date | 11 May 1932 |
| Citation | 143 So. 871,105 Fla. 70 |
| Parties | WHITE v. CRANDALL et al. |
| Court | Florida Supreme Court |
On Rehearing September 14, 1932.
Further Rehearing Denied Oct. 3, 1932.
On Petition for Rehearing.
Error to Circuit Court, Broward County; Vincent C. Giblin, Judge.
On rehearing.
Former opinion recalled and set aside, and judgment of trial court affirmed.
For former opinion see 137 So. 272.
On Rehearing.
C. L. McCoy, of Lake Worth, and W. F. Finch, of West Palm Beach, for plaintiff in error.
Baxter & Walton, of Fort Lauderdale, for defendants in error.
On Petition for Rehearing.
The action of this court in reversing the judgment of the trial court has brought forth such urgent, insistent protests from counsel for the defendants in error that we feel constrained to review our former holdings and again consider the record which counsel insist furnishes no substantial ground for the conclusion reached; that the alleged error upon which the decision rests was harmless in the light of the proceedings as disclosed by the record, was not jurisdictional in character, and the assignments of error which challenged such action of the court upon which the reversal was based were abandoned.
This court, by decision filed November 13, 1931, reversed the judgment of the trial court which was entered on the same day that an order was made by the court sustaining the plaintiffs' demurrer to the amended pleas which were interposed to the declaration. In reaching its conclusion this court said: 'While in procedural matters a wide discretion is accorded the trial court, yet in the absence of anything to indicate trifling with the processes of the court, a final judgment on demurrer to pleas should not in general be rendered the same day an order sustaining a demurrer is filed for record, where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed for record.' 137 So. 272, 273.
It is apparent from that language that the court did not question the power of the trial court, that is to say, its jurisdiction to enter the judgment in the circumstances disclosed by the record, but questioned only the propriety of the discretion exercised in entering a judgment for the plaintiffs upon the same day that an order was filed sustaining the plaintiffs' demurrer to the defendant's pleas, 'where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed for record.' The inference from the above-quoted language is clear that if the defendant or his counsel had had notice of the order sustaining the demurrer, or if an application had been made, with notice to the defendant, for judgment, a different situation would have been presented in which no element of error would have impaired the trial court's exercise of discretion.
A petition for a rehearing was filed on November 23, 1931, in which it was pointed out that the judgment was reversed because of procedural matters which were not assigned as error, and other procedural matters, which, after having been assigned as error, were abandoned by plaintiff in error because of failure to argue such assignments; that no assignment of error was based upon the alleged want of notice to the defendant of the order on demurrer or lack of knowledge on defendant's part of such order before the judgment was entered; that the failure of the plaintiff in error to assign such alleged errors of procedure misled the defendants in error into a sense of security afforded by the decisions of this court holding that a trial court on sustaining a demurrer to pleas may immediately or thereafter enter final judgment on the demurrer, and that consideration by the appellate court will be confined to errors assigned and argued by the plaintiff in error, and that errors not assigned will not be considered.
It is pointed out with much cogency of reasoning that defendants in error were thus misled to their injury in not availing themselves of the provisions of special rule 2 under which by additional instructions to the clerk the transcript might have been made to disclose the true situation which was that the defendant, plaintiff in error here, did not desire to amend his pleas, and was willing for the judgment to be entered in order that he might test immediately the correctness of the order sustaining the demurrer.
The conclusion is irresistible that if the action of the court in entering the judgment was not void for lack of power to do so, but was a mere irregularity of procedure which would or would not be considered an abuse of discretion according to the circumstances in which the action was taken, the defendant could have waived such irregularity expressly or impliedly, and, by failing to assign any error upon, or failing to argue any assignment of error based upon, any phase of such irregularity, has indeed affirmatively waived such irregularity, and is therefore in no position to claim or receive and benefit in this proceeding by reason of any such alleged irregularity.
It is also apparent that the negative inference drawn from the failure of the record in the circumstances to affirmatively disclose knowledge by the defendant of the judgment, or his willingness to have the same entered, that he was deprived of the privilege of tendering other pleas is a fallacy, not only because the plaintiff in error has failed to make the alleged error, consisting in an abuse of discretion, affirmatively to appear, but because in procedural matters as well as all other matters in which the court acts within its jurisdiction the presumption obtains that all things were done and rules observed which are necessary to impart verity and binding force to the judgment. See Clements v. State, 51 Fla. 6, 40 So. 432; Stewart v. Deland-Lake Helen Special Road & Bridge Dist. in Volusia County, 71 Fla. 158, 71 So. 42; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603; People's Realty Co. v. Southern Colonization Co., 78 Fla. 628, 83 So. 527.
Only such portions of the record as may be directed to be incorporated therein by the written demands of the parties are necessary to be included in the transcript. 'Therefore the absence from a transcript of record of any evidence of this or that necessary step or action having been taken in the court below in a cause is not affirmative evidence to the appellate court that such necessary step or action was not, in fact, taken therein.' Stokely v. Conner, 69 Fla. 412, 68 So. 452.
The petition for a rehearing was denied by an order made January 7, 1932. 137 So. 273, 274. The last decision of the court rests upon the proposition that the entry of the judgment by the court below is affirmatively shown by the record to have been made while the defendant was not in default, and who was 'entitled to be notified of the assessment of damages and to contest the same as to amount if he saw fit,' but who had no knowledge of the plaintiffs' application for the judgment which was entered without notice to the defendant. That, it is stated, is a fundamental error of law on the face of the record, and constitutes an exception to the rule that errors not assigned or not argued will not be considered by an appellate court. The opinion states that the error for which the judgment is reversed 'is not the bare fact of entry of judgment against defendant on sustaining demurrers to his pleas, immediately or thereafter, but is because the court entered an order sustaining the demurrors to the pleas and thereafter assessed damages and entered a final judgment against the defendant without his knowledge and without notice to him of such procedure.'
It is also stated in the opinion that such fact is 'plainly deducible from the recitals shown in the final judgment itself.'
The record discloses that the judgment entered was not on default, but was on the demurrer to the pleas, and that the demurrer was sustained without leave to plead further. The judgment entry recites that it further appeared 'to the court that the plaintiffs are entitled to entry of final judgment and ought to have and recover of and from the defendant Michael E. White, their damages sustained herein by reason of the premises.' To say that the fact is plainly deducible from the recitals shown in the judgment, that the judgment was entered against the defendant without his knowledge, and without notice to him of such procedure, is to use hyperbole. So far from such fact being plainly deducible from the language of the judgment, it may with more accuracy be said that the contrary appears, for how could it appear to the court that the plaintiff was 'entitled to entry of final judgment' unless the judge was aware that all required notices were given and procedural rules observed which were necessary to entitle the plaintiffs to the entry of judgment.
Where the presumption in favor of the correctness of the judgment is considered, the recitals of the judgment amount to an affirmative statement that the defendant had knowledge of the judgment and ample notice of the procedure, if indeed such knowledge and notice were essential in the circumstances.
The last opinion in the case presumes that error was committed instead of following the contrary rule that error will not be presumed and must be made clearly to appear before the judgment will fall. The error thus made to appear is also required to be in its nature material and harmful, otherwise the judgment...
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